Let’s Not Settle for this Settlement

Rather than accept the Google settlement with publishers and authors as a fait accompli, or as an obligatory blueprint for the future, the appropriate response is to consider its implications for the future and take all steps to build the world we want to live in. Although the settlement may solve some immediate problems for the parties to the lawsuit, and perhaps some of the contributing libraries who have enabled it, we should not assume that Google Book Search is the only way, or even the best way, to organize and make available our cultural heritage.

This post will outline some of the issues. Next step is to build an appropriate response, to which we welcome input. Losing access and control of our cultural heritage as part of a digitization wave is not acceptable.

At its heart, the settlement agreement grants Google an effective monopoly on an entirely new commercial model for accessing books. It re-conceives reading as a billable event. This reading event is therefore controllable and trackable. It also forces libraries into financing a vending service that requires they perpetually buy back what they have already paid for over many years of careful collection.

The settlement must be approved by the US District Court in New York. Let’s take the brief window of opportunity we have between now and January to build a community of discussion around the significant realignment that the settlement would put into motion.

Already, a collective critique is emerging.

Harvard University has chosen not to continue its participation with Google because (1) the settlement puts too many limitations on the access and use of the scanned books; (2) there are no assurances about Google’s pricing for the subscription service, which will have no competition; (3) the quality of Google’s scans is a cause for concern. Harvard thinks we can find “other ways to open up [our] collections more broadly for the common good.” For more on Harvard’s decision, see here and here.

Fred von Lohmann (Electronic Frontier Foundation) has compiled a thoughtful and concise “reader’s guide” to the settlement, which summarizes a nest of concerns that are raised but, indeed, not settled in this settlement. Among them is privacy:

In order to read the books you’ve paid for, you have to log into Google. Google is also likely to keep track of which books you browse (at least if you’re logged in). This is a huge change in the privacy we traditionally enjoy in libraries and bookstores…. If Google becomes the default place to search, browse, and buy books, it will be able to keep unprecedented track of what you read, how you read it, and collate that with all the other information it has about you.

James Grimmelman (laboratorium.net) believes there is an antitrust issue at the heart of the settlement:

Via the mechanism of class certification, Google has now negotiated a collective license with all authors. This can be read as price-fixing among the authors (who’ve agreed on royalty rates to charge Google) or as the practical equivalent of an exclusive-supply arrangement used by Google to exclude competitors. We’re witnessing the creation of a new ASCAP – and there’s a reason that the original lives under an antitrust consent decree.

Mike Masnick (Techdirt) adds that Google’s monopolizing move “diminishes incentives for making books more useful, and that’s damaging to our cultural heritage.” Neil Netanel (balkinization.com) concurs: “The bottom line is that Google is left with a de facto monopoly over this ‘universal library’ service.” Sherwin Siy (Public Knowledge) reminds us that the interests of the large number of people and organizations outside the agreement-libraries, other digitizers, other search engines, authors and publishers not represented by the plaintiffs, and the general public-have been ignored.

Kevin Smith, Scholarly Communications Officer at Duke University, questions whether the increase of some access is worth the price to libraries:

I believe this agreement would increase access to a lot of books that are currently hard to find or even to know about. But there are significant strings attached to that access; for most people, it will probably come with a hefty price tag, which was not part of Google’s original, Utopian vision for its project. … Most troubling to me, however, is that this agreement would seem to move us one more big step in the direction of per-pay-use, where every library resource would be licensed and metered.

Rick Prelinger notes that it appears to be Google’s intent to have this precedent spread to other media types, such as movies and audio, which would make this approach even less beneficial to an Internet culture that is evolving a different system of balance.

Siva Vaidhyanathan makes an important and impassioned plea for a more cautious view and a long-term perspective:

I am sympathetic to the claim that something is better than nothing and sooner is better than later. But sympathy remains mere sympathy. These claims are not convincing when one considers just how great an alternative system could be, if everyone would just mount a long-term, global campaign for it rather than settle for the quick fix… Is this really the best possible system for the universal spread of knowledge? I think we can do better.

The Open Content Alliance is in full agreement. The issues encompassed by the Google-AAP-Authors Guild Settlement extend beyond the interests of the parties to this one lawsuit. We believe that, as a society, we can do better. We encourage you to read the settlement and the various commentaries we’ve linked to above and then to join us in working toward an open library system for the digital age.

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on Wednesday, November 5th, 2008 at 11:08 pm and is filed under News.
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[…] “At its heart, the settlement agreement grants Google an effective monopoly on an entirely new commercial model for accessing books. It re-conceives reading as a billable event. This reading event is therefore controllable and trackable. It also forces libraries into financing a vending service that requires they perpetually buy back what they have already paid for over many years of careful collection.” Open Content […]

It’s crazy how dominant Google has become in such a short time. Litigation like this still persists in late 2010, and I don’t see any end in site. Google isn’t going to stop buying up any and every smaller company it believes can help increase it’s monopoly.

I think that Google’s rampant growth could eventually be it’s downfall. Few, if any, companies have ever grown this fast. Just look at the search results these days, they are cluttered and filled with inaccuracies. I think it’s only a matter of time before Google implodes.